David Farrar: A weak Three Strikes law

The Government is delivering on its commitment to bring back the Three Strikes legislation, Associate Justice Minister Nicole McKee announced today.

The return is welcome in principle, but what is being proposed is actually pretty weak and even ineffective.

Nicole McKee announced:

Cover the same 40 serious violent and sexual offences as the former legislation, with the addition of the new strangulation and suffocation offence;

They seem suitable offences to include, so that change is good.

Introduce a new requirement that the Three Strikes law will only apply to sentences above 24 months;

This will gut the law, and result in around 75% of violent and sexual offenders not getting strike offences. It will also incentivise judges to always do sentences of below 24 months where possible top avoid a strike.

There is an arguable case that the third strike (the one that gets you the maximum sentence without parole) should require a level of offending that is significant enough for a custodial sentence. But to apply that criteria to the first and second strikes will massively reduce the number of strikes, and hence the deterrent effect desired. Remember the first strike gets no extra penalty – it is the warning about future offending.

Extend the use of the “manifestly unjust” exception to allow some judicial discretion to avoid very harsh outcomes and address outlier cases;

This is going the wrong direction. Judges have already used the manifestly unjust provisions to undermine the law and avoid third strike sentences in the majority of third strike cases. If anything the judicial discretion should be restrained further by stating that use of manifestly unjust should be very very rare.

Also the new criteria to not have strikes for sentences of under two years, would remove the need for greater judicial discretion. So the combination will make the law pretty ineffectual.

Provide a limited benefit for guilty pleas to avoid re-traumatisation of victims, and to improve court delays; and

It is sensible to have this incentive, so a say 20% discount for guilty pleas would mean the sentence for a third strike rape would still be 16 years which would be significant.

See that people who commit murder at second or third strike receive an appropriately lengthy non-parole period.

Well the old law had life without parole, so this will reduce it – but we don’t know by how much.

The Minister intends to bring a draft bill and paper to Cabinet by the end of June, and to introduce the bill to the House soon after that.

The worst change hasn’t been mentioned at all. I understand the new Three Strikes law will reset all the serious violent and sexual offenders who got strikes under the old regime back to zero. This will send out an awful message, and also mean that it will take ages for any deterrent effect to take effect as everyone will be starting at zero again.

I would encourage everyone to engage with the legislative process to demand an effective Three Strikes law, not a weak one.

David Farrar runs Curia Market Research, a specialist opinion polling and research agency, and the popular Kiwiblog where this article was sourced. He previously worked in the Parliament for eight years, serving two National Party Prime Ministers and three Opposition Leaders.